Sunday, 29 January 2017

What (currently ignored) privacy area might result in early enforcement action when the GDPR is in force?

We
have 480 days to go before the General Data Protection Regulation is “in
force”.

And
then what?

That's
the question I’m being increasingly asked these days.

Does
it really mean that in 481 days, European privacy regulators will be heralding
the first megafine for non-compliance with one of the GDPR’s more obscure
requirements?

I
think not.

But
it will undoubtedly lead to greater unease amongst the audit committees of many
firms, particularly those in the (regulated) financial services sector, who
will note, from the data protection compliance reports that have been
commissioned, the difficulties that are being encountered in ensuring that
sufficient evidence is available to demonstrate how the
organisation complies with the GDPR.

Many
of the organisations I’m currently working with are still trying to understand
just what it is that they are supposed to be complying with. And
also, what standard of evidence is necessary to be generated,
just in case privacy regulators exercise their Article 30(4) right to request
it.

Each
professional consulting firm I’ve come across carries out data protection
audits / health checks in different ways. And, in assessing data controllers
through different privacy prisms, I’m confident that some organisations might
well “pass” a privacy review that was carried out by one consulting firm, yet
“fail” the review that was carried out by another firm. Why? Because the other
firm had decided to focus on some obscure GDPR issues that the original firm
didn’t think were particularly relevant.

Does
this matter?

Well,
it would if it led to the organisation performing poorly in a review that was
carried out by a national privacy regulator.

So,
what should be done to reduce the likelihood of such an event?

In
the UK, the ICO has provided organisations with a great deal of guidance as to
precisely what controls they would expect to see in place and operating
effectively. I don’t see this degree of guidance readily available in other EU
countries. I have not had an opportunity to review all the webpages of each
national data protection supervisory authority, but my cursory checks have
certainly not unearthed the level of detail that has been published by the ICO.
Perhaps this will be a task for the Data Protection Board.

But,
in the short term, what new areas of non-compliance might European privacy
regulators focus on?

If
I were a privacy regulator, I would focus on records management and, in
particular, the greatly ignored area of records retention. So
many organisations find it hard to develop, let alone implement, comprehensive
records retention policies. Are they in for an unwelcome surprise? The GDPR is
(apparently) going to require data controllers to be more transparent about
their records retention policies.

The
potential fine for not informing individuals, as their personal data is being
collected, about retention periods is of course significant. But do (even)
regulators take the issue of data retention that seriously? Outside the
communications sector, how much interest, or formal enforcement action, has
ever been taken against data controllers with regard to breaches of the Fifth
Data Protection Principle?

I’m
not aware of many cases. Over retention may have been an aggravating factor
when the ICO considered the level of a fine for some incidents involving
security breaches, but there are very few recorded cases of enforcement action
being taken just because a data controller retained data for longer than the
regulator considered necessary.

Perhaps
this will change.

But,
since most data controllers have paid no more than lip service to the difficult
issue of the period for which the personal data will be stored, I doubt that
many currently feel that the ICO’s attitude will change significantly in 480
days time.

About Me

I'm Martin Hoskins, and I write this blog to offer somewhat of an irreverent approach to data protection issues. I'm not one of the "high priests" of data protection. I prefer the principles of transparency, fairness, practicality and risk-assessment over tedious technical dogma. In my view, when the law is unfair or impractical, it should be queried.
While I may, occasionally, gently criticise various organisations with which I am or have been associated, I write here in an entirely personal capacity. My comments should never be taken to represent anyone else's views about any of the pressing issues of the day.
There is a much more serious side to my privacy consulting work, but for that you'll need to contact me at Grant Thornton UK LLP, where I'm an Associate Director, leading the UK privacy practice.
I tweet as @DataProtector.
You can contact me at:
martin.c.hoskins@uk.gt.com, or (with respect to my less serious posts) info@martinhoskins.com.